ON THE DEFENSIVE: Manslaughter is not the answer for co-sleeping deaths

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Milwaukee recently saw its 11th co-sleeping death this year. In response, County Supervisor Mark Borkowski suggested state legislators enact new laws that would permit prosecutors to bring “manslaughter” charges against parents who cause the death of a child through co-sleeping.

Borkowski also suggested that felony drug charges be issued against parents who use drugs and cause death by co-sleeping. In his pronouncements, he has offered little in the way of specifics as to how he proposes these statutes should read.

First, there are thousands of laws on the books, and at least nine variations of homicide are outlawed in Section 940 of the Wisconsin Statutes. If a parent recklessly causes the death of a child, there are numerous statutes that permit that parent to be prosecuted.

Many cases of co-sleeping death are ones where the mother consumes alcohol or drugs to such a degree that she incapacitates herself, rolls onto her child and suffocates it. For years, prosecutors have had tools at their disposal with which they can prosecute this behavior.

The question is not whether the law permits prosecution, but whether law enforcement will choose to investigate these cases and refer them to the district attorney’s office.

Second, the practice of co-sleeping is not inherently dangerous, such that a new criminal statute is necessary. Many responsible parents embrace co-sleeping practices for reasons that are perfectly legitimate.

And, any new mother will tell you that they are highly tuned to notice even the slightest sound of distress or discomfort from their baby. The likelihood of a sober mother rolling onto her child and killing it is about as likely as a child dying from SIDS.

Finally, what would be the ultimate outcome of this proposal? If the legislature were to pass a “manslaughter” law criminalizing co-sleeping deaths without any evidence of reckless behavior, would police be able to get search warrants to examine the sleeping conditions between a mother and her child? What if police received a “tip” that a mother was co-sleeping with her child? Would that tip result in a mother being scrutinized by police or social services?

After his ambiguous and poorly explained proposals failed to generate any meaningful discussion, Borkowski lashed out, remarking that he is “outraged at the lack of outrage.” Perhaps the lack of outrage has more to do with the fact that most people realize there are already laws on the books prohibiting reckless behavior.

Or perhaps people are reluctant to embrace proposals that would put the government even further into our lives and bedrooms.